Macchi di Cellere Gangemi
Most read: Contributor Italy, August 2022
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The judge may refuse to pay the consultant appointed by the court if, after a certain period of time, the expert of the court requests compensation for his work and expenses.
Unfortunately, it is quite common for the Court’s adviser to be late in filing his/her technical report, but there may also be delays in asking the Court to pay the fee due and reimbursement of the conferred allocate costs incurred to the task.
Article 71 of Italian Presidential Decree 115/2002 provides for a specific hypothesis of loss of the right to compensation in the following case: “Compensation The application for the activities and expenses incurred during the performance of the duties assigned by the judge must be submitted within 100 days of the date of testimony or the date of performance of those activities”. The period is up to 200 days from the date of travel if the court adviser has to carry out activities outside the competence of the judge issuing the appointment (Section 2, Article 71 cit.).
Therefore, the Court’s consultant has only 100 days from the execution of the assignment (ie submission of the final report) to receive the remuneration for the activities carried out and the reimbursement of costs such as laboratory tests, requesting assistance, etc. It is therefore clear that the consequences of a simple distraction or oversight can be important.
If the application for compensation is made when the time limit has already expired, the court will reject this application with a declaration loss of rights to claim compensation. This finding of the court may be challenged by a Summary verdict (see Article 15 of Italian Legislative Decree 1St September 2011 No. 150).
The decision on the challenge is made by the head of the judicial office to which the judge who issued the contested decision belongs (Article 170 DPR 115/2002 v Regulation that cannot be challenged but can be challenged before the Italian Court of Cassation (see Article 360, Section 4 of the Code of Civil Procedure).
The Supreme Court has clarified some aspects of the discussed loss of rights contained in the provision of article 71 DPR n. 115/2002:
– First, within the meaning of Article 2966 of the Italian Civil Code, the loss of rights is prevented by a specific legal act, which in our case is the formal application to the court to obtain compensation for the activities carried out by the judge’s adviser;
– Second, after the 100-day period has expired, the consultant cannot invoke the longer limitation period to compensate. In fact, the Italian Supreme Court confirms that the continued existence of the right even after the deadline “…it is unfounded, since the right can be exercised within its limitation period as long as the loss of rights has not yet occurred. The loss of the right after the deadline prevents the person who was once entitled from exercising it, even if the limitation period has not yet expired…“ (see Civil Court of Cassation, Section II, 4th March 2015, No. 4373);
– The consultant’s material ability to accurately quantify the costs incurred during the activity cannot be taken into account dies aquo for the stated period of 100 days. In fact, the starting date cannot depend on whether the assistant to the court’s counsel defaults in assessing his own remuneration (see Court of Cassation, cited).
In conclusion, it seems that the court expert who carelessly forgets to submit a formal application for reimbursement of his activities and expenses has no choice but to accept the loss of his right to payment.
The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.
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